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G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,


vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:

The fundamental right of the people to information on matters of public concern is invoked in this
special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil
Service Commission. The respondent had earlier denied Legaspi's request for information on the
civil service eligibilities of certain persons employed as sanitarians in the Health Department of
Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly
represented themselves as civil service eligibles who passed the civil service examinations for
sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas,
is guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy
to acquire the information, petitioner prays for the issuance of the extraordinary writ of
mandamus to compel the respondent Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et.
al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed
under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel the publication
in the Official Gazette of various presidential decrees, letters of instructions and other
presidential issuances. Prior to the recognition of the right in said Constitution the statutory right
to information provided for in the Land Registration Act (Section 56, Act 496, as amended) was
claimed by a newspaper editor in another mandamus proceeding, this time to demand access to
the records of the Register of Deeds for the purpose of gathering data on real estate transactions
involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the
Bill of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the citizen
subject to such limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III,
Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to government
research data used as basis for policy development." The new provision reads:

The right of the people to information on matters of public concern shall be


recognized. Access to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government research data
used as basis. for policy development, shall be afforded the citizen, subject to
such stations as may be provided by law.

These constitutional provisions are self-executing. They supply the rules by means of which the
right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167
[1927]) by guaranteeing the right and mandating the duty to afford access to sources of

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information. Hence, the fundamental right therein recognized may be asserted by the people
upon the ratification of the constitution without need for any ancillary act of the Legislature.
(Id. at, p. 165) What may be provided for by the Legislature are reasonable conditions and
limitations upon the access to be afforded which must, of necessity, be consistent with the
declared State policy of full public disclosure of all transactions involving public interest
(Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation
may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become
operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may
be properly invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition.
He challenges the petitioner's standing to sue upon the ground that the latter does not possess
any clear legal right to be informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in
securing this particular information. He further argues that there is no ministerial duty on the part
of the Commission to furnish the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully
excludes said party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines
vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be an "aggrieved
party" in the sense that he possesses a clear legal right to be enforced and a direct interest in the
duty or act to be performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this
suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual
interest in the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is
a vague reference to an unnamed client in whose behalf he had allegedly acted when he made
inquiries on the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case
upon the right of the people to information on matters of public concern, which, by its very nature,
is a public right. It has been held that:

* * * when the question is one of public right and the object of the mandamus is to
procure the enforcement of a public duty, the people are regarded as the real
party in interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of
the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985,
136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves the
assertion of a public right, the requirement of personal interest is satisfied by the mere fact that
the petitioner is a citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that
even those who have no direct or tangible interest in any real estate transaction are part of the
"public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds
shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:

* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it


embraces every person. To say that only those who have a present and existing
interest of a pecuniary character in the particular information sought are given the

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right of inspection is to make an unwarranted distinction. *** (Subido vs.


Ozaeta, supra at p. 387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the
alleged obstruction of the exercise of the public right. We find no cogent reason to deny his
standing to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on
the part of those who govern, to respect and protect that right. That is the very essence of the Bill
of Rights in a constitutional regime. Only governments operating under fundamental rules
defining the limits of their power so as to shield individual rights against its arbitrary exercise can
properly claim to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of
the limitations imposed upon it by the Constitution in order to uphold individual liberties, without
an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the
Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records,
documents, papers and in addition, government research data used as basis for policy
development, subject to such limitations as may be provided by law. The guarantee has been
further enhanced in the New Constitution with the adoption of a policy of full public disclosure,
this time "subject to reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to
wit:

Subject to reasonable conditions prescribed by law, the State adopts and


implements a policy of full public disclosure of all its transactions involving public
interest. (Art. 11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court
declared as an imperative duty of the government officials concerned to publish all important
legislative acts and resolutions of a public nature as well as all executive orders and
proclamations of general applicability. We granted mandamus in said case, and in the process,
We found occasion to expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be


informed on matters of public concern is to be given substance and reality. The
law itself makes a list of what should be published in the Official Gazette. Such
listing, to our mind, leaves respondents with no discretion whatsoever as to what
must be in included or excluded from such publication. (Tanada v.
Tuvera, supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the examination of
public records, specifically, the records in the Office of the Register of Deeds, is emphasized
in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examination is unlawful,
or sheer, idle curiosity, we do not believe it is the duty under the law of
registration officers to concern themselves with the motives, reasons, and objects
of the person seeking access to the records. It is not their prerogative to see that
the information which the records contain is not flaunted before public gaze, or
that scandal is not made of it. If it be wrong to publish the contents of the records,
it is the legislature and not the officials having custody thereof which is called
upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis
supplied).

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It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose
sight of the reasonable regulations which may be imposed by said agencies in custody of public
records on the manner in which the right to information may be exercised by the public. In
the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in
which persons desiring to do so, may inspect, examine or copy records relating to registered
lands. However, the regulations which the Register of Deeds may promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that damage to
or loss of, the records may be avoided, that undue interference with the duties of
the custodian of the books and documents and other employees may be
prevented, that the right of other persons entitled to make inspection may be
insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to
regulate the manner of inspection by the public of criminal docket records in the case of Baldoza
vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case
was filed against the respondent judge for his alleged refusal to allow examination of the criminal
docket records in his sala. Upon a finding by the Investigating Judge that the respondent had
allowed the complainant to open and view the subject records, We absolved the respondent. In
effect, We have also held that the rules and conditions imposed by him upon the manner of
examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority
to regulate the manner of examining public records does not carry with it the power to prohibit. A
distinction has to be made between the discretion to refuse outright the disclosure of or access to
a particular information and the authority to regulate the manner in which the access is to be
afforded. The first is a limitation upon the availability of access to the information sought, which
only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the
government agency charged with the custody of public records. Its authority to regulate access is
to be exercised solely to the end that damage to, or loss of, public records may be avoided,
undue interference with the duties of said agencies may be prevented, and more importantly, that
the exercise of the same constitutional right by other persons shall be assured (Subido vs.
Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable regulation by
the government agency in custody thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical
exercise of agency discretion. The constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional
guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of public concern


is a recognition of the essentiality of the free flow of ideas and information in a democracy
(Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way
that free discussion enables members of society to cope with the exigencies of their time
(Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids

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the people in democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them
a better perspective of the vital issues confronting the nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It
does not open every door to any and all information. Under the Constitution, access to official
records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7,
second sentence). The law may therefore exempt certain types of information from public
scrutiny, such as those affecting national security (Journal No. 90, September 23, 1986, p. 10;
and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that,
in every case, the availability of access to a particular public record must be circumscribed by the
nature of the information sought, i.e., (a) being of public concern or one that involves public
interest, and, (b) not being exempted by law from the operation of the constitutional guarantee.
The threshold question is, therefore, whether or not the information sought is of public interest or
public concern.

a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access, the government agency has the
burden of showing that the information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the operation of the guarantee. To hold
otherwise will serve to dilute the constitutional right. As aptly observed, ". . . the government is in
an advantageous position to marshall and interpret arguments against release . . ." (87 Harvard
Law Review 1511 [1974]). To safeguard the constitutional right, every denial of access by the
government agency concerned is subject to review by the courts, and in the proper case, access
may be compelled by a writ of Mandamus.

In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. "Public concern" like "public interest" is a term that eludes exact definition.
Both terms embrace a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by
case basis whether the matter at issue is of interest or importance, as it relates to or affects the
public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate
notice to the public of the various laws which are to regulate the actions and conduct of citizens.
In Subido vs. Ozaeta, supra, the public concern deemed covered by the statutory right was the
knowledge of those real estate transactions which some believed to have been registered in
violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain
government employees that they are civil service eligibles for the positions to which they were
appointed. The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and except as to positions which
are policy determining, primarily confidential or highly technical, by competitive
examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons
who are eligibles. Public officers are at all times accountable to the people even as to their
eligibilities for their respective positions.

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b. But then, it is not enough that the information sought is of public interest. For mandamus to lie
in a given case, the information must not be among the species exempted by law from the
operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has
failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know
who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names
of those who pass the civil service examinations, as in bar examinations and licensure
examinations for various professions, are released to the public. Hence, there is nothing secret
about one's civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither
unusual nor unreasonable. And when, as in this case, the government employees concerned
claim to be civil service eligibles, the public, through any citizen, has a right to verify their
professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express
limitations under the law upon access to the register of civil service eligibles for said position, the
duty of the respondent Commission to confirm or deny the civil service eligibility of any person
occupying the position becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the
position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy
and Mariano Agas, for said position in the Health Department of Cebu City, as requested by the
petitioner Valentin L. Legaspi.

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO


BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY"
ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES, J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right
to information and pray that respondent be directed:

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(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos;
and/or

(b) to furnish petitioners with certified true copies of the documents evidencing their respective
loans; and/or

(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5;
paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte


GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be
furnished with the list of names of the opposition members of (the) Batasang Pambansa who
were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We
understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be
furnished with the certified true copies of the documents evidencing their loan. Expenses in
connection herewith shall be borne by us.

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of
the present regime.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions or
decisions, shall be afforded the citizen subject to such limitation as may be provided by law. (Art.
IV, Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your favorable response on
the matter.
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Very truly yours,

(Sgd.) RICARDO C. VALMONTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte


108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications, President &
General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of
June 4, 1986 requesting a list of the opposition members of Batasang Pambansa who were able
to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS and all those
who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve
this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality
unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial
institution, I regret very much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO


Deputy General Counsel
[Rollo, p. 40.]

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On June 20, 1986, apparently not having yet received the reply of the Government Service and
Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent
another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free
to do whatever action necessary within the premises to pursue our desired objective in
pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of
the defunct interim and regular Batasang Pambansa, including ten (10) opposition members,
were granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties were
required to file their memoranda. The parties having complied, the case was deemed submitted
for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus,
among which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of
Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees.
It is therefore asserted that since administrative remedies were not exhausted, then petitioners
have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not
they are entitled to the documents sought, by virtue of their constitutional right to information.
Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion
of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort
to the courts, he is expected to have exhausted all means of administrative redress available
under the law. The courts for reasons of law, comity and convenience will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of administrative remedies is subject
to settled exceptions, among which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30,
1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.]
The issue raised by petitioners, which requires the interpretation of the scope of the constitutional
right to information, is one which can be passed upon by the regular courts more competently
than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion of administrative
remedies is warranted. Having disposed of this procedural issue, We now address ourselves to
the issue of whether or not mandamus hes to compel respondent to perform the acts sought by
petitioners to be done, in pursuance of their right to information.

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We shall deal first with the second and third alternative acts sought to be done, both of which
involve the issue of whether or not petitioners are entitled to access to the documents evidencing
loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136
SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May
29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies concerned to act as prayed for
by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of
which provided:

The right of the people to information on 'matters of public concern shall be recognized. Access
to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought
and data relative to them, and the free exchange of ideas and discussion of issues thereon, is
vital to the democratic government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of the authority
conferred by the people. Denied access to information on the inner workings of government, the
citizenry can become prey to the whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in
Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be were
empty words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the
obligation to check the accuracy of information the disseminate. For them, the freedom of the
press and of speech is not only critical, but vital to the exercise of their professions. The right of
access to information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an essential element of these freedoms is
to keep open a continuing dialogue or process of communication between the government and
the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the people's will.
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Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression.
But this is not to say that the right to information is merely an adjunct of and therefore restricted
in application by the exercise of the freedoms of speech and of the press. Far from it. The right to
information goes hand-in-hand with the constitutional policies of full public disclosure * and
honesty in the public service. ** It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in
Legaspi, the people's right to information is limited to "matters of public concern," and is further
"subject to such limitations as may be provided by law." Similarly, the State's policy of full
disclosure is limited to "transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public
interest" or "public concern," and is not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public
concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. "Public concern" like "public interest" is a term that eludes exact definition.
Both terms embrace a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters naturally arouse the
interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by
case basis whether the matter at issue is of interest or importance, as it relates to or affects the
public. [Ibid. at p. 541]

In the Tañada case the public concern deemed covered by the constitutional right to information
was the need for adequate notice to the public of the various laws which are to regulate the
actions and conduct of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure
that government positions requiring civil service eligibility are occupied only by persons who are
eligibles" [Supra at p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of
the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the
GSIS immediately before the February 7, 1986 election through the intercession of th eformer
First Lady, Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its funds

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assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the
Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay
the contributions, premiums, interest and other amounts payable to GSIS by the government, as
employer, as well as the obligations which the Republic of the Philippines assumes or
guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No.
186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds
administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It
is therefore the legitimate concern of the public to ensure that these funds are managed properly
with the end in view of maximizing the benefits that accrue to the insured government
employees. Moreover, the supposed borrowers were Members of the defunct Batasang
Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be
the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that
an its transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by the
alleged borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those excluded by
law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers.
It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as
regards the documents subject of this petition. His position is apparently based merely on
considerations of policy. The judiciary does not settle policy issues. The Court can only declare
what the law is, and not what the law should be. Under our system of government, policy issues
are within the domain of the political branches of the government, and of the people themselves
as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by
the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS
must be deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of
Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited government. UItimate and
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pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state,
In contrast, a system of limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and integrity of the individual — has
become increasingly important as modem society has developed. All the forces of technological
age — industrialization, urbanization, and organization — operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-
445.]

When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise. However, the
competing interests of these rights need not be resolved in this case. Apparent from the above-
quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right
cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v.
Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of
its borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121
Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31
L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to
be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may
not succeed if they choose to invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been granted. It cannot be denied that
because of the interest they generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf. Ayer
Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen
v. Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are
private in nature and hence, are not covered by the Constitutional right to information on matters
of public concern which guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary
functions, are outside the coverage of the people's right of access to official records.

It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional policy of full
public disclosure and the right to information which is applicable only to "official" transactions.

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First of all, the "constituent — ministrant" dichotomy characterizing government function has long
been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and
Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said
that the government, whether carrying out its sovereign attributes or running some business,
discharges the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would
not justify the exclusion of the transactions from the coverage and scope of the right to
information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from the records of the
proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" — referring to the
transactions of the State — and when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

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MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?

MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both
steps leading to a contract, and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the
transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis
supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the
Court, are nevertheless persuasive, and considering further that government-owned and
controlled corporations, whether performing proprietary or governmental functions are
accountable to the people, the Court is convinced that transactions entered into by the GSIS, a
government-controlled corporation created by special legislation are within the ambit of the
people's right to be informed pursuant to the constitutional policy of transparency in government
dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours
of examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to
the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to
furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel custodians of
official records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a
well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty
of defendant to perform the act required. The corresponding duty of the respondent to perform
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the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.]
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents
and records evidencing loans granted to Members of the former Batasang Pambansa, as
petitioners may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.
Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of Isabela and
Municipality of Linnamon, Intervenors Franklin Drilon and Adel Tamano and Sec. Mar
Roxas

-vs-

Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National
Mapping & Resource Information Authority and Davide Jr. and respondents in
intervention Muslim Multi-Sectoral Movement for Peace and Development and Muslim
Legal Assistance Foundation Inc.,

Facts:

Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD)
which is scheduled to be signed by the Government of the Republic of the Philippines and the
MILF in August 05, 2008. Five cases bearing the same subject matter were consolidated by this
court namely:-

 GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to declare
unconstitutional and to have the MOA-AD disclosed to the public and be open for public
consultation.
 GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said MOA-
AD and to exclude the city to the BJE.
 GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD and
additionally impleading Exec. Sec. Ermita.
 GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and void
the MOA-AD and without operative effect and those respondents enjoined from executing
the MOA-AD.
 GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and executing the MOA-AD and
or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for
being unconstitutional and illegal and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the
government and the MILF starting in 1996; then in 1997, they signed the Agreement on General
Cessation of Hostilities; and the following year, they signed the General Framework of

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Agreement of Intent on August 27, 1998. However, in 1999 and in the early of 2000, the MILF
attacked a number of municipalities in Central Mindanao. In March 2000, they took the hall of
Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-out war-which tolled the
peace negotiation. It was when then Pres. Arroyo assumed office, when the negotiation
regarding peace in Mindanao continued. MILF was hesitant; however, this negotiation proceeded
when the government of Malaysia interceded. Formal peace talks resumed and MILF suspended
all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between the parties.
After the death of MILF Chairman Hashim and Iqbal took over his position, the crafting of MOA-
AD in its final form was born.

 MOA-AD Overview

This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of
this MOA-AD are the Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such
as ILO Convention 169, the UN Charter etc., and the principle of Islam i.e compact right
entrenchment (law of compact, treaty and order). The body is divided into concepts and
principles, territory, resources, and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples
of Mindanao and its adjacent islands. These people have the right to self- governance of their
Bangsamoro homeland to which they have exclusive ownership by virtue of their prior rights of
occupation in the land. The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having entered into treaties of
amity and commerce with foreign nations." It then mentions for the first time the "Bangsamoro
Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain
and Ancestral Lands of the Bangsamoro.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan
geographic region, involving the present ARMM, parts of which are those which voted in the
inclusion to ARMM in a plebiscite. The territory is divided into two categories, “A” which will be
subject to plebiscite not later than 12 mos. after the signing and “B” which will be subject to
plebiscite 25 years from the signing of another separate agreement. Embodied in the MOA-AD
that the BJE shall have jurisdiction over the internal waters-15kms from the coastline of the BJE
territory; they shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the government shall
exercise joint jurisdiction, authority and management over all natural resources. There will also
be sharing of minerals in the territorial waters; but no provision on the internal waters.

Included in the resources is the stipulation that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the option to establish trade
missions in those countries, as well as environmental cooperation agreements, but not to include
aggression in the GRP. The external defense of the BJE is to remain the duty and obligation of
the government. The BJE shall have participation in international meetings and events" like those
of the ASEAN and the specialized agencies of the UN. They are to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or protocols
for environmental protection and equitable sharing of incomes and revenues involving the bodies
of water adjacent to or between the islands forming part of the ancestral domain. The BJE shall
also have the right to explore its resources and that the sharing between the Central Government
and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.
And they shall have the right to cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between the GRP and
MILF is associative i.e. characterized by shared authority and responsibility. This structure of
governance shall be further discussed in the Comprehensive Compact, a stipulation which was
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highly contested before the court. The BJE shall also be given the right to build, develop and
maintain its own institutions, the details of which shall be discussed in the comprehensive
compact as well.

Issues:

1. WON the petitions have complied with the procedural requirements for the exercise of judicial
review

2. WON respondents violate constitutional and statutory provisions on public consultation and the
right to information when they negotiated and later initialed the MOA-AD; and

3. WON the contents of the MOA-AD violated the Constitution and the laws

Ruling:

The SC declared the MOA-AD contrary to law and the Constitution.

 On the Procedural Issue

1st issue: As regards the procedural issue, SC upheld that there is indeed a need for the
exercise of judicial review.

The power of judicial review is limited to actual cases or controversy, that is the court will decline
on issues that are hypothetical, feigned problems or mere academic questions. Related to the
requirement of an actual case or controversy is the requirement of ripeness. The contention of
the SolGen is that there is no issue ripe for adjudication since the MOA-AD is only a proposal
and does not automatically create legally demandable rights and obligations. Such was denied.

The SC emphasized that the petitions are alleging acts made in violation of their duty or in grave
abuse of discretion. Well-settled jurisprudence states that acts made by authority which exceed
their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus,
and an actual case or controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. This is aside from the fact that concrete
acts made under the MOA-AD are not necessary to render the present controversy ripe and that
the law or act in question as not yet effective does not negate ripeness.

With regards to the locus standi, the court upheld the personalities of the Province of Cotabato,
Province of Zamboanga del norte, City of Iligan, City of Zamboanga, petitioners in intervention
Province of Sultan Kudarat, City of Isabela and Municipality of Linnamon to have locus standi
since it is their LGUs which will be affected in whole or in part if include within the BJE.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite
to delineate the BJE territory. On that score alone, they can be given legal standing. Senator Mar
Roxas is also given a standing as an intervenor. And lastly, the Intervening respondents Muslim
Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim lawyers since they stand to be
benefited or prejudiced in the resolution of the petitions regarding the MOA-AD.

On the contention of mootness of the issue considering the signing of the MOA-AD has already
been suspended and that the President has already disbanded the GRP, the SC disagrees. The
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court reiterates that the moot and academic principle is a general rule only, the exceptions,
provided in David v. Macapagal-Arroyo, that it will decide cases, otherwise moot and academic,
if it finds that (a) there is a grave violation of the Constitution; (b) the situation is of exceptional
character and paramount public interest is involved; (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and (d) the case
is capable of repetition yet evading review; and that where there is a voluntary cessation of the
activity complained of by the defendant or doer, it does not divest the court the power to hear and
try the case especially when the plaintiff is seeking for damages or injunctive relief.

Clearly, the suspension of the signing of the MOA-AD and the disbandment of the GRP did not
render the petitions moot and academic. The MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever provides impetus for the Court to
formulate controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.

At all events, the Court has jurisdiction over most if not the rest of the petitions. There is a
reasonable expectation that petitioners will again be subjected to the same problem in the future
as respondents' actions are capable of repetition, in another or any form. But with respect to the
prayer of Mandamus to the signing of the MOA-AD, such has become moot and academic
considering that parties have already complied thereat.

 On the Substantive Issue

2nd Issue: The SC ruled that the MOA-AD is a matter of public concern, involving as it does the
sovereignty and territorial integrity of the State, which directly affects the lives of the public at
large.

As enshrined in the Constitution, the right to information guarantees the right of the people to
demand information, and integrated therein is the recognition of the duty of the officialdom to give
information even if nobody demands. The policy of public disclosure establishes a concrete
ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's
right to know as the centerpiece. It is a mandate of the State to be accountable by following such
policy. These provisions are vital to the exercise of the freedom of expression and essential to
hold public officials at all times accountable to the people.

Also, it was held that such stipulation in the Constitution is self-executory with reasonable
safeguards —the effectivity of which need not await the passing of a statute. Hence, it is
essential to keep open a continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the
people's will.

The idea of a feedback mechanism was also sought for since it is corollary to the twin rights to
information and disclosure. And feedback means not only the conduct of the plebiscite as per the
contention of the respondents. Clearly, what the law states is the right of the petitioners to be
consulted in the peace agenda as corollary to the constitutional right to information and
disclosure. As such, respondent Esperon committed grave abuse of discretion for failing to carry
out the furtive process by which the MOA-AD was designed and crafted runs contrary to and in
excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereto. Moreover, he cannot invoke of executive privilege because he already
waived it when he complied with the Court’s order to the unqualified disclosure of the official
copies of the final draft of the MOA-AD.
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In addition, the LGU petitioners has the right to be involved in matters related to such peace talks
as enshrined in the State policy. The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

With respect to the ICC/IPPs they also have the right to participate fully at all levels on decisions
that would clearly affect their lives, rights and destinies. The MOA-AD is an instrument
recognizing ancestral domain, hence it should have observed the free and prior informed consent
to the ICC/IPPs; but it failed to do so. More specially noted by the court is the excess in authority
exercised by the respondent—since they allowed delineation and recognition of ancestral domain
claim by mere agreement and compromise; such power cannot be found in IPRA or in any law to
the effect.

3rd issue: With regard to the provisions of the MOA-AD, there can be no question that they
cannot be all accommodated under the present Constitution and laws. Not only its specific
provisions but the very concept underlying them:

 On matters of the Constitution.

Association as the type of relationship governing between the parties. The parties manifested
that in crafting the MOA-AD, the term association was adapted from the international law. In
international law, association happens when two states of equal power voluntarily establish
durable links i.e. the one state, the associate, delegates certain responsibilities to the other,
principal, while maintaining its international status as state; free association is a middle ground
between integration and independence. The MOA-AD contains many provisions that are
consistent with the international definition of association which fairly would deduced that the
agreement vest into the BJE a status of an associated state, or at any rate, a status closely
approximating it. The court vehemently objects because the principle of association is not
recognized under the present Constitution.

 On the recognition of the BJE entity as a state. The concept implies power beyond what
the Constitution can grant to a local government; even the ARMM do not have such
recognition; and the fact is such concept implies recognition of the associated entity as a
state. There is nothing in the law that contemplate any state within the jurisdiction other
than the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence. The court disagrees with the
respondent that the MOA-AD merely expands the ARMM. BJE is a state in all but name
as it meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter into
relations with other states. As such the MOA-AD clearly runs counter to the national
sovereignty and territorial integrity of the Republic.

 On the expansion of the territory of the BJE. The territory included in the BJE includes
those areas who voted in the plebiscite for them to become part of the ARMM. The
stipulation of the respondents in the MOA-AD that these areas need not participate in the
plebiscite is in contrary to the express provision of the Constitution. The law states that that
"[t]he creation of the autonomous region shall be effective when approved by a majority of
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the votes cast by the constituent units in a plebiscite called for the purpose, provided that
only provinces, cities, and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region." Clearly, assuming that the BJE is just an expansion
of the ARMM, it would still run afoul the wordings of the law since those included in its
territory are areas which voted in its inclusion to the ARMM and not to the BJE.

 On the powers vested in the BJE as an entity. The respondents contend that the powers
vested to the BJE in the MOA-AD shall be within sub-paragraph 9 of sec 20, art. 10 of the
constitution and that a mere passage of a law is necessary in order to vest in the BJE
powers included in the agreement. The Court was not persuaded. SC ruled that such
conferment calls for amendment of the Constitution; otherwise new legislation will not
concur with the Constitution. Take for instance the treaty making power vested to the BJE
in the MOA-AD. The Constitution is clear that only the President has the sole organ and is
the country’s sole representative with foreign nation. Should the BJE be granted with the
authority to negotiate with other states, the former provision must be amended
consequently. Section 22 must also be amended—the provision of the law that promotes
national unity and development. Because clearly, associative arrangement of the MOA-AD
does not epitomize national unity but rather, of semblance of unity. The associative ties
between the BJE and the national government, the act of placing a portion of Philippine
territory in a status which, in international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.

 On matters of domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the
definition of Bangsamoro people used in the MOA-AD. Said law specifically distinguishes
between the Bangsamoro people and the Tribal peoples that is contrary with the definition of the
MOA-AD which includes all indigenous people of Mindanao.

o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral
domain is a clear departure from the procedure embodied in the IPRA law which ironically is the
term of reference of the MOA-AD.

 On matters of international law.

The Philippines adopts the generally accepted principle of international law as part of the law of
the land. In international law, the right to self-determination has long been recognized which
states that people can freely determine their political status and freely pursue their economic,
social, and cultural development. There are the internal and external self-determination—internal,
meaning the self-pursuit of man and the external which takes the form of the assertion of the
right to unilateral secession. This principle of self-determination is viewed with respect accorded
to the territorial integrity of existing states. External self-determination is only afforded in
exceptional cases when there is an actual block in the meaningful exercise of the right to internal
self-determination. International law, as a general rule, subject only to limited and exceptional
cases, recognizes that the right of disposing national territory is essentially an attribute of the
sovereignty of every state.

On matters relative to indigenous people, international law states that indigenous peoples

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situated within states do not have a general right to independence or secession from those states
under international law, but they do have rights amounting to what was discussed above as the
right to internal self-determination; have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means for financing their
autonomous functions; have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.

Clearly, there is nothing in the law that required the State to guarantee the indigenous people
their own police and security force; but rather, it shall be the State, through police officers, that
will provide for the protection of the people. With regards to the autonomy of the indigenous
people, the law does not obligate States to grant indigenous peoples the near-independent
status of a state; since it would impair the territorial integrity or political unity of sovereign and
independent states.

 On the basis of the suspensive clause.

o It was contented by the respondents that grave abuse of discretion cannot be had, since the
provisions assailed as unconstitutional shall not take effect until the necessary changes to the
legal framework are effected.

The Court is not persuaded. This suspensive clause runs contrary to Memorandum of
Instructions from the President stating that negotiations shall be conducted in accordance to the
territorial integrity of the country—such was negated by the provision on association incorporated
in the MOA-AD. Apart from this, the suspensive clause was also held invalid because of the
delegated power to the GRP Peace panel to advance peace talks even if it will require new
legislation or even constitutional amendments. The legality of the suspensive clause hence
hinges on the query whether the President can exercise such power as delegated by EO No.3 to
the GRP Peace Panel. Well settled is the rule that the President cannot delegate a power that
she herself does not possess. The power of the President to conduct peace negotiations is not
explicitly mentioned in the Constitution but is rather implied from her powers as Chief Executive
and Commander-in-chief. As Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent
and suppress rebellion and lawless violence.

As such, the President is given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation. At all event, the
president may not, of course, unilaterally implement the solutions that she considers viable; but
she may not be prevented from submitting them as recommendations to Congress, which could
then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment
and revision.

While the President does not possess constituent powers - as those powers may be exercised
only by Congress, a Constitutional Convention, or the people through initiative and referendum -
she may submit proposals for constitutional change to Congress in a manner that does not
involve the arrogation of constituent powers. Clearly, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly consider implementing
even those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty. The President’s power is limited only to the preservation and
defense of the Constitution but not changing the same but simply recommending proposed
amendments or revisions.

o The Court ruled that the suspensive clause is not a suspensive condition but is a term
because it is not a question of whether the necessary changes to the legal framework will take
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effect; but, when. Hence, the stipulation is mandatory for the GRP to effect the changes to the
legal framework –which changes would include constitutional amendments. Simply put, the
suspensive clause is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the
Republic of the Philippines will certainly be adjusted to conform to all the "consensus points"
found in the MOA-AD. Hence, it must be struck down as unconstitutional.

 On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents' act of guaranteeing amendments
is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. The
MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the
legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state
within a state, but in their brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution. Upholding such an act would amount
to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.

G.R. No. 132601 January 19, 1999

LEO ECHEGARAY, petitioner,


vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

1. The Decision in this case having become final and executory, its execution enters
the exclusive ambit of authority of the executive authority. The issuance of the
TRO may be construed as trenching on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates dangerous precedent
as there will never be an end to litigation because there is always a possibility
that Congress may repeal a law.
3. Congress had earlier deliberated extensively on the death penalty bill. To be
certain, whatever question may now be raised on the Death Penalty Law before
the present Congress within the 6-month period given by this Honorable Court
had in all probability been fully debated upon . . .
4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.

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5. At this moment, certain circumstances/supervening events transpired to the effect


that the repeal or modification of the law imposing death penalty has become nil,
to wit:

a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the
repeal of the law;
c. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.

In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached
a copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act
No. 7659 which provided for the re-imposition of death penalty, notifying the Senate, the
Judiciary and the Executive Department of the position of the House of Representative on this
matter, and urging the President to exhaust all means under the law to immediately implement
the death penalty law." The Resolution was concurred in by one hundred thirteen (113)
congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional
prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the
Court did not lose jurisdiction to address incidental matters involved or arising from the petition;
(4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no
certainty that the law on capital punishment will not be repealed or modified until Congress
convenes and considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No.
132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing
rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of
January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated
January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she
has no legal standing to intervene in the case at bar, let alone the fact that the interest of the
State is properly represented by the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public respondents that this Court
lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the
petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer
be altered in accord with the principle that "it is just as important that there should be a place to
end as there should be a place to begin litigation." 1 To start with, the Court is not changing even
a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of
the Decision of this Court that became final. These metes and bounds are clearly spelled out in
the Entry of Judgment in this case, viz:

ENTRY OF JUDGMENT

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This is to certify that on October 12, 1998 a decision rendered in the above-
entitled case was filed in this Office, the dispositive part of which reads as
follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks


to declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of
the Rules and Regulations to Implement Republic Act No. 8177
are concerned, which are hereby declared INVALID because (a)
Section 17 contravenes Article 83 of the Revised Penal Code, as
amended by Section 25 of Republic Act No. 7659; and (b) Section
19 fails to provide for review and approval of the Lethal Injection
Manual by the Secretary of Justice, and unjustifiably makes the
manual confidential, hence unavailable to interested parties
including the accused/convict and counsel. Respondents are
hereby enjoined from enforcing and implementing Republic Act
No. 8177 until the aforesaid Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177 are
appropriately amended, revised and/or corrected in accordance
with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Cler
k of
Cou
rt

By:
(SG
D)
TE
RE
SIT
A
G.
DIM
AIS
IP

Acti
ng
Chi
ef

Judi
cial
Rec
ord
s
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Offi
ce

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision.
On October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he
has caused the publication of the said Amended Rules and Regulations as required by the
Administrative Code. It is crystalline that the Decision of this Court that became final and
unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19
of the Rules and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177
cannot be enforced and implemented until sections 17 and 19 of the Rules and Regulations to
Implement R.A. No. 8177 are amended. It is also daylight clear that this Decision was not altered
a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of
judgment cannot divest this Court of its jurisdiction to execute and enforce the same judgment.
Retired Justice Camilo Quiason synthesized the well established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor
the case. By the finality of the judgment, what the court loses is its jurisdiction to
amend, modify or alter the same. Even after the judgment has become final the
court retains its jurisdiction to execute and enforce it. 3 There is a difference
between the jurisdiction of the court to execute its judgment and its jurisdiction to
amend, modify or alter the same. The former continues even after the judgment
has become final for the purpose of enforcement of judgment; the latter
terminates when the judgment becomes final. 4 . . . For after the judgment has
become final facts and circumstances may transpire which can render the
execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly
pointed out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case
of Director of Prisons v. Judge of First Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which


constitute jurisprudence on the subject, that in criminal cases, after the sentence
has been pronounced and the period for reopening the same cannot change or
alter its judgment, as its jurisdiction has terminated . . . When in cases of appeal
or review the cause has been returned thereto for execution, in the event that the
judgment has been affirmed, it performs a ministerial duty in issuing the proper
order. But it does not follow from this cessation of functions on the part of the
court with reference to the ending of the cause that the judicial authority
terminates by having then passed completely to the Executive. The particulars of
the execution itself, which are certainly not always included in the judgment and
writ of execution, in any event are absolutely under the control of the judicial
authority, while the executive has no power over the person of the convict except
to provide for carrying out of the penalty and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this
point. It is a well-known principle that notwithstanding the order of execution and
the executory nature thereof on the date set or at the proper time, the date
therefor can be postponed, even in sentences of death. Under the common law
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this postponement can be ordered in three ways: (1) By command of the King; (2)
by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient
to state this principle of the common law to render impossible that assertion in
absolute terms that after the convict has once been placed in jail the trial court
can not reopen the case to investigate the facts that show the need for
postponement. If one of the ways is by direction of the court, it is acknowledged
that even after the date of the execution has been fixed, and notwithstanding the
general rule that after the (court) has performed its ministerial duty of ordering the
execution . . . and its part is ended, if however a circumstance arises that ought
to delay the execution, and there is an imperative duty to investigate the
emergency and to order a postponement. Then the question arises as to whom
the application for postponing the execution ought to be addressed while the
circumstances is under investigation and so to who has jurisdiction to make the
investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot
be the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power
in one Supreme Court and in such lower courts as may be established by law. To be sure, the
important part of a litigation, whether civil or criminal, is the process of execution of decisions
where supervening events may change the circumstance of the parties and compel courts to
intervene and adjust the rights of the litigants to prevent unfairness. It is because of these
unforseen, supervening contingencies that courts have been conceded the inherent and
necessary power of control of its processes and orders to make them conformable to law and
justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is
conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary
to carry it into effect may be employed by such court or officer and if the procedure to be followed
in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which appears conformable to the spirit
of said law or rules." It bears repeating that what the Court restrained temporarily is the execution
of its own Decision to give it reasonable time to check its fairness in light of supervening events
in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not
restrain the effectivity of a law enacted by Congress.1âwphi1.nêt

The more disquieting dimension of the submission of the public respondents that this Court has
no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of
the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of
execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in
civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power
to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this
Court to enhance its independence, for in the words of Justice Isagani Cruz "without
independence and integrity, courts will lose that popular trust so essential to the maintenance of
their vigor as champions of justice." 9 Hence, our Constitutions continuously vested this power to
this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court
to promulgate rules concerning pleading, practice and procedure was granted but it appeared to
be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or
supplement. Thus, its Section 13, Article VIII provides:

Sec.13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice and procedure in all courts, and the admission to the practice
of law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,

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practice and procedure are hereby repealed as statutes, and are declared Rules
of Court, subject to the power of the Supreme Court to alter and modify the same.
The Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10 Congress in the exercise of its power to amend rules of the Supreme Court
regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which
considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up
to August 1951 and 71% in the 1952 bar examinations. This Court struck down the law as
unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a
legislation; it is a judgment — a judgment promulgated by this Court during the aforecited years
affecting the bar candidates concerned; and although this Court certainly can revoke these
judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the
legislative nor executive department, that may do so. Any attempt on the part of these
department would be a clear usurpation of its function, as is the case with the law in
question." 12 The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to
grant license for the practice of law belongs exclusively to this Court, and the law passed by
Congress on the matter is of permissive character, or as other authorities say, merely to fix the
minimum conditions for the license." By its ruling, this Court qualified the absolutist tone of the
power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice
and procedure in all courts, . . . which, however, may be repealed, altered or supplemented by
the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(5) Promulgate rules concerning pleading,


practice, and procedure in all courts, the
admission to the practice of law, and the
integration of the Bar, which, however, may be
repealed, altered, or supplemented by the
Batasang Pambansa. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others,
it enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

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Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection


and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the admission
to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.

The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away
the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer
shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987
Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public
respondents do, that this Court has no jurisdiction to control the process of execution of its
decisions, a power conceded to it and which it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after
November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized
the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge,
the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified
true copy of the Warrant of Execution dated November 17, 1998 bearing the designated
execution day of death convict Leo Echegaray and allow (him) to reveal or announce the
contents thereof, particularly the execution date fixed by such trial court to the public when
requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary
of Justice beseeching this Court "to provide the appropriate relief" state:

xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's


Manifestation however, herein respondent is submitting the
instant Manifestation and Motion (a) to stress, inter alia, that the
non-disclosure of the date of execution deprives herein
respondent of vital information necessary for the exercise of his
statutory powers, as well as renders nugatory the constitutional
guarantee that recognizes the people's right to information of
public concern, and (b) to ask this Honorable Court to provide the
appropriate relief.

6. The non-disclosure of the date of execution deprives herein


respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
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pursuant to Section 39, Chapter 8, Book IV of the Administrative


Code of 1987, in relation to Title III, Book IV of such
Administrative Code, insofar as the enforcement of Republic Act
No. 8177 and the Amended Rules and Regulations to Implement
Republic Act No. 8177 is concerned and for the discharge of the
mandate of seeing to it that laws and rules relative to the
execution of sentence are faithfully observed.

7. On the other hand, the willful omission to reveal the information


about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine
Constitution and Article 81 of the Revised Penal Code, as
amended, which provides that the death sentence shall be carried
out "without prejudice to the exercise by the President of his
executive powers at all times." (Emphasis supplied) For instance,
the President cannot grant reprieve, i.e., postpone the execution
of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110
[1937]) in the absence of a precise date to reckon with. The
exercise of such clemency power, at this time, might even work to
the prejudice of the convict and defeat the purpose of the
Constitution and the applicable statute as when the date at
execution set by the President would be earlier than that
designated by the court.

8. Moreover, the deliberate non-disclosure of information about


the date of execution to herein respondent and the public violates
Section 7, Article III (Bill of Rights) and Section 28, Article II
(Declaration of Principles and State Policies) of the 1987
Philippine Constitution which read:

Sec. 7. The right of the people to information on matters of public


concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis
for policy development shall, be afforded the citizen, subject to
such limitations as may be provided by law.

Sec. 28. Subject to reasonable conditions prescribed by law, the


State adopts and implements a policy of full public disclosure of
all transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies


"the rules by means of which the right to information may be
enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167
[1972]) by guaranteeing the right and mandating the duty to afford
access to sources of information. Hence, the fundamental right
therein recognized may be asserted by the people upon the
ratification of the Constitution without need for any ancillary act of
the Legislature (Id., at p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with
the declared State policy of full public disclosure of all
transactions involving public interest (Constitution, Art. II, Sec.
28). However, it cannot be overemphasized that whatever
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limitation may be prescribed by the Legislature, the right and the


duty under Art. III, Sec. 7 have become operative and enforceable
by virtue of the adoption of the New Charter." (Decision of the
Supreme Court En Banc in Legaspi v. Civil Service Commission,
150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his
client's right to due process and the public's right to information. The Solicitor General, as
counsel for public respondents, did not oppose petitioner's motion on the ground that this Court
has no more jurisdiction over the process of execution of Echegaray. This Court granted the
relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution
of December 15, 1998. There was not a whimper of protest from the public respondents and they
are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The
jurisdiction of this Court does not depend on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case
having become final and executory, its execution enters the exclusive ambit of authority of the
executive department . . .. By granting the TRO, the Honorable Court has in effect granted
reprieve which is an executive function." 14 Public respondents cite as their authority for this
proposition, Section 19, Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution,


the President may grant reprieves, commutations, and pardons, and remit fines
and forfeitures after conviction by final judgment. He shall also have the power to
grant amnesty with the concurrence of a majority of all the members of the
Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It
also provides the authority for the President to grant amnesty with the concurrence of a majority
of all the members of the Congress. The provision, however, cannot be interpreted as denying
the power of courts to control the enforcement of their decisions after their finality. In truth, an
accused who has been convicted by final judgment still possesses collateral rights and these
rights can be claimed in the appropriate courts. For instance, a death convict who become
insane after his final conviction cannot be executed while in a state of insanity. 15 As observed by
Antieau, "today, it is generally assumed that due process of law will prevent the government from
executing the death sentence upon a person who is insane at the time of execution." 16 The
suspension of such a death sentence is undisputably an exercise of judicial power. It is not a
usurpation of the presidential power of reprieve though its effects is the same — the temporary
suspension of the execution of the death convict. In the same vein, it cannot be denied that
Congress can at any time amend R.A. No. 7659 by reducing the penalty of death to life
imprisonment. The effect of such an amendment is like that of commutation of sentence. But by
no stretch of the imagination can the exercise by Congress of its plenary power to amend laws
be considered as a violation of the power of the President to commute final sentences of
conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a
death convict do not exclude each other for the simple reason that there is no higher right than
the right to life. Indeed, in various States in the United States, laws have even been enacted
expressly granting courts the power to suspend execution of convicts and their constitutionality
has been upheld over arguments that they infringe upon the power of the President to grant
reprieves. For the public respondents therefore to contend that only the Executive can protect the

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right to life of an accused after his final conviction is to violate the principle of co-equal and
coordinate powers of the three branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28,
1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on
January 4, the first working day of 1999; (b) that members of Congress had either sought for his
executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that
Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that
capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate
President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would
seek a review of the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of
capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other
congressmen are demanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very
Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due
to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether
petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law
are mere speculations or not. To the Court's majority, there were good reasons why the Court
should not immediately dismiss petitioner's allegations as mere speculations and surmises. They
noted that petitioner's allegations were made in a pleading under oath and were widely
publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress
is a new Congress and has no less than one hundred thirty (130) new members whose views on
capital punishment are still unexpressed. The present Congress is therefore different from the
Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A.
No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual
bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3
p.m. And verification from Congress was impossible as Congress was not in session. Given
these constraints, the Court's majority did not rush to judgment but took an extremely cautious
stance by temporarily restraining the execution of petitioner. The suspension was temporary —
"until June 15, 1999, coeval with the constitutional duration of the present regular session of
Congress, unless it sooner becomes certain that no repeal or modification of the law is going to
be made." The extreme caution taken by the Court was compelled, among others, by the fear
that any error of the Court in not stopping the execution of the petitioner will preclude any further
relief for all rights stop at the graveyard. As life was at, stake, the Court refused to
constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the
certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law
and equitable considerations demand no less before allowing the State to take the life of one its
citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the
crystallization of the issue whether Congress is disposed to review capital punishment. The
public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the
possibility that Congress will repeal or amend the death penalty law. He names these
supervening events as follows:

xxx xxx xxx

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a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal of
the law;
c. The fact that Senator Roco's resolution to repeal the law only bears his signature
and that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited
House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing
the sense of the House of Representatives to reject any move to review R.A. No. 7659 which
provided for the reimposition of death penalty, notifying the Senate, the Judiciary and the
Executive Department of the position of the House of Representative on this matter and urging
the President to exhaust all means under the law to immediately implement the death penalty
law." The Golez resolution was signed by 113 congressman as of January 11, 1999. In a
marathon session yesterday that extended up 3 o'clock in the morning, the House of
Representative with minor, the House of Representative with minor amendments formally
adopted the Golez resolution by an overwhelming vote. House Resolution No. 25 expressed the
sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In
addition, the President has stated that he will not request Congress to ratify the Second Protocol
in review of the prevalence of heinous crimes in the country. In light of these developments, the
Court's TRO should now be lifted as it has served its legal and humanitarian purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so
long as men believe in punishment." 19 In our clime and time when heinous crimes continue to be
unchecked, the debate on the legal and moral predicates of capital punishment has been
regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death
partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is
no more than an exchange of epithets is healthy in a democracy. But when the debate
deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the
majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the
Bill of Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is the very purpose
of the Constitution — and particularly the Bill of Rights — to declare certain values transcendent,
beyond the reach of temporary political majorities." 20 Man has yet to invent a better hatchery of
justice than the courts. It is a hatchery where justice will bloom only when we can prevent the
roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be
ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of
courts in rendering justice is to be fair and they can pass their litmus test only when they can be
fair to him who is momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for
Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the
Temporary Restraining Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial
Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in
accordance with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima
and Pardo, JJ., concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

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Buena and Gonzaga-Reyes, JJ., took no part.

G.R. No. 130716 December 9, 1998

FRANCISCO I. CHAVEZ, petitioner,


vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL
GUNIGUNDO (in his capacity as chairman of the PCGG), respondents, GLORIA A.
JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A.
JOPSON, petitioners-in-intervention.

PANGANIBAN, J.:

Petitioner asks this Court to define the nature and the extent of the people's constitutional right to
information on matters of public concern. Does this right include access to the terms of
government negotiations prior to their consummation or conclusion? May the government,
through the Presidential Commission on Good Government (PCGG), be required to reveal the
proposed terms of a compromise agreement with the Marcos heirs as regards their alleged ill-
gotten wealth? More specifically, are the "General Agreement" and "Supplemental Agreement,"
both dated December 28, 1993 and executed between the PCGG and the Marcos heirs, valid
and binding?

The Case

These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin
respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing
any greement with the heirs of the late President Ferdinand E. Marcos . . . relating to and
concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or
abroad — including the so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make
public all negotiations and agreement, be they ongoing or perfected, and all documents related to
or relating to such negotiations and agreement between the PCGG and the Marcos heirs."1

The Facts

Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated
the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the
public treasury and the systematic subjugation of the country's economy," alleges that what
impelled him to bring this action were several news reports 2 bannered in a number of
broadsheets sometime in September 1997. These news items referred to (1) the alleged
discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss
banks; and (2) the reported execution of a compromise, between the government (through
PCGG) and the Marcos heirs, on how to split or share these assets.

Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to
disclose publicly all its transactions involving the national interest,4 demands that respondents
make public any and all negotiations and agreements pertaining to PCGG's task of recovering
the Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of ill-
gotten wealth involves an issue of "paramount public interest," since it has a "debilitating effect
on the country's economy" that would be greatly prejudicial to the national interest of the Filipino
people. Hence, the people in general have a right to know the transactions or deals being
contrived and effected by the government.

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Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos
heirs. They claim, though, that petitioner's action is premature, because there is no showing that
he has asked the PCGG to disclose the negotiations and the Agreements. And even if he has,
PCGG may not yet be compelled to make any disclosure, since the proposed terms and
conditions of the Agreements have not become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the
Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E.
Marcos, and that the Republic opposed such move on the principal grounds that (1) said
Agreements have not been ratified by or even submitted to the President for approval, pursuant
to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their
undertakings therein, particularly the collation and submission of an inventory of their assets. The
Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the
Sandiganbayan dismissed a similar petition filed by the Marcoses' attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG
Chairman Magtanggol Gunigundo, categorically stated:

This is to reiterate my previous position embodied in the Palace Press Release of


6 April 1995 that I have not authorized you to approve the Compromise
Agreements of December 28, 1993 or any agreement at all with the Marcoses,
and would have disapproved them had they been submitted to me.

The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize
you to approve said Agreements, which I reserve for myself as President of the
Republic of the Philippines.

The assailed principal Agreement 6 reads:

GENERAL AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between

The Republic of the Philippines, through the Presidential


Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders
Nos. 1, 2 and 14, with offices at the philcomcen Building, Pasig,
Metro Manila, represented by its Chairman referred to as FIRST
PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda


Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age,
and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

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WHEREAS, the PRIVATE PARTY has been impelled by their sense of


nationalism and love of country and of the entire Filipino people, and their desire
to set up a foundation and finance impact projects like installation of power plants
in selected rural areas and initiation of other community projects for the
empowerment of the people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal
Tribunal of December 21, 1990, that the $356 million belongs in principle to the
Republic of the Philippines provided certain conditionalities are met, but even
after 7 years, the FIRST PARTY has not been able to procure a final judgment of
conviction against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation


which, as proven by the past 7 years, is consuming money, time and effort, and is
counter-productive and ties up assets which the FIRST PARTY could otherwise
utilize for its Comprehensive Agrarian Reform Program, and other urgent needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of


unity and reconciliation in order to bind the nation's wounds and start the process
of rebuilding this nation as it goes on to the twenty-first century;

WHEREAS, this Agreement settles all claims and counterclaims which the parties
may have against one another, whether past, present, or future, matured or
inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set forth
herein, the parties agree as follows:

1. The parties will collate all assets presumed to


be owned by, or held by other parties for the
benefit of, the PRIVATE PARTY for purposes of
determining the totality of the assets covered by
the settlement. The subject assets shall be
classified by the nature thereof, namely: (a) real
estate; (b) jewelry; (c) paintings and other works of
art; (d) securities; (e) funds on deposit; (f) precious
metals, if any, and (g) miscellaneous assets or
assets which could not appropriately fall under any
of the preceding classification. The list shall be
based on the full disclosure of the PRIVATE
PARTY to insure its accuracy.

2. Based on the inventory, the FIRST PARTY shall


determine which shall be ceded to the FIRST
PARTY, and which shall be assigned to/retained
by the PRIVATE PARTY. The assets of the
PRIVATE PARTY shall be net of and exempt
from, any form of taxes due the Republic of the
Philippines. However, considering the
unavailability of all pertinent and relevant
documents and information as to balances and
ownership, the actual specification of assets to be
retained by the PRIVATE PARTY shall be covered
by supplemental agreements which shall form part
of this Agreement.
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3. Foreign assets which the PRIVATE PARTY


shall fully disclose but which are held by trustees,
nominees, agents or foundations are hereby
waived over by the PRIVATE PARTY in favor of
the FIRST PARTY. For this purpose, the parties
shall cooperate in taking the appropriate action,
judicial and/or extrajudicial, to recover the same
for the FIRST PARTY.

4. All disclosures of assets made by the PRIVATE


PARTY shall not be used as evidence by the
FIRST PARTY in any criminal, civil, tax or
administrative case, but shall be valid and binding
against said PARTY for use by the FIRST PARTY
in withdrawing any account and/or recovering any
asset. The PRIVATE PARTY withdraws any
objection to the withdrawal by and/or release to
the FIRST PARTY by the Swiss banks and/or
Swiss authorities of the $356 million, its accrued
interests, and/or any other account; over which the
PRIVATE PARTY waives any right, interest or
participation in favor of the FIRST PARTY.
However, any withdrawal or release of any
account aforementioned by the FIRST PARTY
shall be made in the presence of any authorized
representative of the PRIVATE PARTY.

5. The trustees, custodians, safekeepers,


depositaries, agents, nominees, administrators,
lawyers, or any other party acting in similar
capacity in behalf of the PRIVATE PARTY are
hereby informed through this General Agreement
to insure that it is fully implemented and this shall
serve as absolute authority from both parties for
full disclosure to the FIRST PARTY of said assets
and for the FIRST PARTY to withdraw said
account and/or assets and any other assets which
the FIRST PARTY on its own or through the help
of the PRIVATE PARTY/their trustees, etc., may
discover.

6. Any asset which may be discovered in the


future as belonging to the PRIVATE PARTY or is
being held by another for the benefit of the
PRIVATE PARTY and which is not included in the
list per No. 1 for whatever reason shall
automatically belong to the FIRST PARTY, and
the PRIVATE PARTY in accordance with No. 4
above, waives any right thereto.

7. This Agreement shall be binding on and inure to


the benefit of, the parties and their respective legal
representatives, successors and assigns and shall
supersede any other prior agreement.

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8. The PARTIES shall submit this and any other


implementing Agreements to the President of the
Philippines for approval. In the same manner, the
PRIVATE PARTY shall provide the FIRST PARTY
assistance by way of testimony or deposition on
any information it may have that could shed light
on the cases being pursued by the FIRST PARTY
against other parties. The FIRST PARTY shall
desist from instituting new suits already subject of
this Agreement against the PRIVATE PARTY and
cause the dismissal of all other cases pending in
the Sandiganbayan and in other courts.

9. In case of violation by the PRIVATE PARTY of


any of the conditions herein contained, the
PARTIES shall be restored automatically to
the status quo ante the signing of this Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be represented by


Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E.
MARCOS,

IMELDA R. MARCOS, MA.


IMELDA

MARCOS-MANOTOC,
FERDINAND R.

MARCOS, JR., & IRENE


MARCOS-

ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-


MARCOS

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39

[Sgd.] MA. IMELDA MARCOS-


MANOTOC

FERDINAND R. MARCOS, JR.7

[Sgd.] IRENE MARCOS-


ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M.


MESINA, JR.

Counsel &
Attorney-in-Fact

Petitioner also denounces this supplement to the above Agreement:8

SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and between

The Republic of the Philippines, through the Presidential


Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders
Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig,
Metro Manila, represented by its Chairman Magtanggol C.
Gunigundo, hereinafter referred to as the FIRST PARTY,

— and —

Estate of Ferdinand E. Marcos, represented by Imelda


Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age,
and with address at c/o No. 154 Lopez Rizal St., Mandaluyong,
Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE PARTY.

W I T N E S S E T H:

The parties in this case entered into a General Agreement dated


Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue their


interest and/or sue over local assets located in the Philippines
against parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the recovery
and/or withdrawal of all assets including lawyers' fees, agents'
fees, nominees' service fees, bank charges, traveling expenses
and all other expenses related thereto shall be for the account of
the PRIVATE PARTY.

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In consideration of the foregoing, the parties hereby agree that the PRIVATE
PARTY shall be entitled to the equivalent of 25% of the amount that may be
eventually withdrawn from said $356 million Swiss deposits.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS,

IMELDA R. MARCOS, MA. IMELDA

MARCOS-MANOTOC, FERDINAND R.

MARCOS, JR., & IRENE MARCOS-

ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR.9

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact

Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March
23, enjoining respondents, their agents and/or representatives from "entering into, or perfecting
and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating
to and concerning their ill-gotten wealth."

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues:

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(a) Procedural:

(1) Whether or not the petitioner has the personality or legal standing to file the
instant petition; and

(2) Whether or not this Court is the proper court before which this action may be
filed.

(b) Substantive:

(1) Whether or not this Court could require the PCGG to disclose to the public the
details of any agreement, perfected or not, with the Marcoses; and

(2) Whether or not there exist any legal restraints against a compromise
agreement between the Marcoses and the PCGG relative to the Marcoses' ill-
gotten wealth. 11

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the
Court a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that
they are "among the 10,000 claimants whose right to claim from the Marcos Family and/or the
Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th
Circuit US App. Lexis 14796, June 16, 1994 and the Decision of the Swiss Supreme Court of
December 10, 1997." As such, they claim to have personal and direct interest in the subject
matter of the instant case, since a distribution or disposition of the Marcos properties may
adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the
Court granted their motion to intervene and required the respondents to comment thereon. The
September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated his
aforecited arguments against the main petition. 13

The Court's Ruling

The petition id imbued with merit.

First Procedural Issue:

Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality
to file the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people
and [is], in truth hand in fact, part of the public treasury," any compromise in relation to it would
constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is
for a full, if not substantial, recovery of such assets.

Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is
an issue "of transcendental importance the public." He asserts that ordinary taxpayers have a
right to initiate and prosecute actions questioning the validity of acts or orders of government
agencies or instrumentalities, if the issues raised are "of paramount public interest;" and if they
"immeasurably affect the social, economic, and moral well-being of the people."

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when
the proceeding involves the assertion of a public right, 14 such as in this case. He invokes several
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decisions 15 of this Court which have set aside the procedural matter of locus standi, when the
subject of the case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has
no standing to institute the present action, because no expenditure of public funds is involved
and said petitioner has no actual interest in the alleged agreement. Respondents further insist
that the instant petition is premature, since there is no showing that petitioner has requested
PCGG to disclose any such negotiations and agreements; or that, if he has, the Commission has
refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his
legal standing to institute the instant petition. Access to public documents and records is a public
right, and the real parties in interest are the people themselves. 16

In Tañada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the
object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the
real parties in interest; and because it is sufficient that petitioner is a citizen and as such is
interested in the execution of the laws, he need not show that he has any legal or special interest
in the result of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to
be informed on matters of public concern, a right then recognized in Section 6, Article IV of the
1973 Constitution, 19 in connection with the rule that laws in order to be valid and enforceable
must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the
petitioners' legal standing, the Court declared that the right they sought to be enforced "is a
public right recognized by no less than the fundamental law of the land."

Legaspi v. Civil Service Commission, 20 while reiterating Tañada, further declared that "when
a mandamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general
'public' which possesses the right." 21

Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, the management and the operation
of the Manila International Container Terminal, "public interest [was] definitely involved
considering the important role [of the subject contract] . . . in the economic development of the
country and the magnitude of the financial consideration involved." We concluded that, as a
consequence, the disclosure provision in the Constitution would constitute sufficient authority for
upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to
official records, documents and papers — a right guaranteed under Section 7, Article III of the
1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the
satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal
standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that
the petition at bar should be allowed.

In any event, the question on the standing of Petitioner Chavez is rendered moot by the
intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The
standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said
petitioners-intervenors have a legal interest in the subject matter of the instant case, since a
distribution or disposition of the Marcoses' ill-gotten properties may adversely affect the
satisfaction of their claims.

Second Procedural Issue:

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The Court's Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one that is
not intended to delay any proceeding in the Sandiganbayan, its having been filed before this
Court was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the
Supreme Court original jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought
before this Court, since there is neither a justiciable controversy nor a violation of petitioner's
rights by the PCGG. He alleges that the assailed agreements are already the very lis mota in
Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is
premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed
in the graft court, for the approval of the subject Agreements. Such opposition belies petitioner's
claim that the government, through respondents, has concluded a settlement with the Marcoses
as regards their alleged ill-gotten assets.

In Tañada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding,


seeking to enforce a public right as well as to compel performance of a public duty mandated by
no less than the fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly
confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus.

Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is
pending resolution. There may seem to be some merit in such argument, if petitioner is merely
seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to
the public the terms contained in said Agreements. However, petitioner is here seeking the public
disclose of "all negotiations and agreement, be they ongoing or perfected, and documents
related to or relating to such negotiations and agreement between the PCGG and the Marcos
heirs."

In other words, this petition is not confined to the Agreements that have already been drawn, but
likewise to any other ongoing or future undertaking towards any settlement on the alleged
Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of
scope, of the twin constitutional provisions on "public transactions." This broad and prospective
relief sought by the instant petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of

Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a compromise


settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the
following provisions of the Constitution:

Sec. 7 [Article III]. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

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Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest.

Respondents' opposite view is that the above constitutional provisions refer to completed and
operative official acts, not to those still being considered. As regards the assailed Agreements
entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued,
because said Agreements have not been approved by the President, and the Marcos heirs have
failed to fulfill their express undertaking therein. Thus, the Agreements have not become
effective. Respondents add that they are not aware of any ongoing negotiation for another
compromise with the Marcoses regarding their alleged ill-gotten assets.

The "information" and the "transactions" referred to in the subject provisions of the Constitution
have as yet no defined scope and extent. There are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative state duty may be obliged.
However, the following are some of the recognized restrictions: (1) national security matters and
intelligence information, (2) trade secrets and banking transactions, (3) criminal matters, and (4)
other confidential information.

Limitations to the Right:

(1) National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a
governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters. 24 But where there is no need to protect such state
secrets, the privilege may not be invoked to withhold documents and other
information, 25 provided that they are examined "in strict confidence" and given "scrupulous
protection."

Likewise, information on inter-government exchanges prior to the conclusion of treaties and


executive agreements may be subject to reasonable safeguards for the sake of national
interest. 26

(2) Trade Secrets and

Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security
matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual
Property Code 27 and other related laws) as well as banking transactions (pursuant to the
Secrecy of Bank Deposits Act 28) are also exempted from compulsory disclosure. 29

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of criminals, 30 which courts may nor inquire
into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be
seriously jeopardized by free public access to, for example, police information regarding rescue
operations, the whereabouts of fugitives, or leads on covert criminal activities.

(4) Other Confidential

Information
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The Ethical Standards Act 31 further prohibits public officials and employees from using or
divulging "confidential or classified information officially known to them by reason of their office
and not made available to the public." 32

Other acknowledged limitations to information access include diplomatic correspondence, closed


door Cabinet meetings and executive sessions of either house of Congress, as well as the
internal deliberations of the Supreme Court. 33

Scope: Matters of Public Concern and

Transactions Involving Public Interest

In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be
"matters of public concern," access to which may be limited by law. Similarly, the state policy of
full public disclosure extends only to "transactions involving public interest" and may also be
"subject to reasonable conditions prescribed by law." As to the meanings of the terms "public
interest" and "public concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated:

In determining whether or not a particular information is of public concern there is


no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public.

Considered a public concern in the above-mentioned case was the "legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are occupied only by
persons who are eligibles." So was the need to give the general public adequate notification of
various laws that regulate and affect the actions and conduct of citizens, as held in Tañada.
Likewise did the "public nature of the loanable funds of the GSIS and the public office held by the
alleged borrowers (members of the defunct Batasang Pambansa)" qualify the information sought
in Valmonte as matters of public interest and concern. In Aquino-Sarmiento v. Morato, 36 the
Court also held that official acts of public officers done in pursuit if their official functions are
public in character; hence, the records pertaining to such official acts and decisions are within the
ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to "provide
information on their policies and procedures in clear and understandable language, [and] ensure
openness of information, public consultations and hearings whenever appropriate . . .," except
when "otherwise provided by law or when required by the public interest." In particular, the law
mandates free public access, at reasonable hours, to the annual performance reports of offices
and agencies of government and government-owned or controlled corporations; and the
statements of assets, liabilities and financial disclosures of all public officials and employees. 37

In general, writings coming into the hands of public officers in connection with their official
functions must be accessible to the public, consistent with the policy of transparency of
governmental affairs. This principle is aimed at affording the people an opportunity to determine
whether those to whom they have entrusted the affairs of the government are honesty, faithfully
and competently performing their functions as public servants. 38 Undeniably, the essence of
democracy lies in the free flow of thought; 39 but thoughts and ideas must be well-informed so
that the public would gain a better perspective of vital issues confronting them and, thus, be able
to criticize as well as participate in the affairs of the government in a responsible, reasonable and
effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas
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among a well-informed public that a government remains responsive to the changes desired by
the people. 40

The Nature of the Marcoses'

Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February 1986, the
new government headed by President Corazon C. Aquino was specifically mandated to
"[r]ecover ill-gotten properties amassed by the leaders and supporters of the previous regime
and [to] protect the interest of the people through orders of sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of
legislative enactments) dealt with the recovery of these alleged ill-gotten properties.

Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses
fled the country, created the PCGG which was primarily tasked to assist the President in the
recovery of vast government resources allegedly amassed by former President Marcos, his
immediate family, relatives and close associates both here and abroad.

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had
knowledge or possession of ill-gotten assets and properties were warned and, under pain of
penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from
otherwise frustrating or obstructing the recovery efforts of the government.

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG
which, taking into account the overriding considerations of national interest and national survival,
required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the people, there
is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public
concern and imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very
nature, assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten
wealth" refers to assets and properties purportedly acquired, directly or indirectly, by former
President Marcos, his immediate family, relatives and close associates through or as a result of
their improper or illegal use of government funds or properties; or their having taken undue
advantage of their public office; or their use of powers, influences or relationships, "resulting in
their unjust enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines." Clearly, the assets and properties referred to supposedly originated
from the government itself. To all intents and purposes, therefore, they belong to the people. As
such, upon reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by competent courts.
Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is that
it may be used for national economic recovery.

We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses'
purported ill-gotten wealth.

Access to Information

on Negotiating Terms

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But does the constitutional provision likewise guarantee access to information


regarding ongoing negotiations or proposals prior to the final agreement? This same clarification
was sought and clearly addressed by the constitutional commissioners during their deliberations,
which we quote hereunder: 43

MR. SUAREZ. And when we say "transactions" which should be distinguished


from contracts, agreements, or treaties or whatever, does the Gentleman refer to
the steps leading to the consummation of the contract, or does he refer to the
contract itself?

MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated contract,
Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the


consummation of the transaction?

MR. OPLE. Yes, subject to reasonable safeguards on the national interest.

Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its
officers, as well as other government representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with the ostensible owners and holders of
ill-gotten wealth. Such information, though, must pertain to definite propositions of the
government, not necessarily to intra-agency or inter-agency recommendations or
communications 44 during the stage when common assertions are still in the process of being
formulated or are in the "exploratory" stage. There is a need, of course, to observe the same
restrictions on disclosure of information in general, as discussed earlier — such as on matters
involving national security, diplomatic or foreign relations, intelligence and other classified
information.

Second Substantive Issue:

Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and the
Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an
unwarranted permission to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint on entering into a compromise
with the Marcos heirs, provided the agreement does not violate any law.

Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following
matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any
ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future
legitimate. 45 And like any other contract, the terms and conditions of a compromise must not be
contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding
and has the force of law between the parties, 47 unless the consent of a party is vitiated — such
as by mistake, fraud, violence, intimidation or undue influence — or when there is forgery, or if
the terms of the settlment are so palpably unconscionable. In the latter instances, the agreement
may be invalidated by the courts. 48

Effect of Compromise
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on Civil Actions

One of the consequences of a compromise, and usually its primary object, is to avoid or to end a
litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair
settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who
shows a sincere desire to compromise. 51

In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil
and criminal immunity to Jose Y. Campos and the family, the Court held that in the absence an
express prohibition, the rule on compromises in civil actions under the Civil Code is applicable to
PCGG cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and
expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery.
The same principle was upheld in Benedicto v. Board of Administrators of Television Stations
RPN, BBC and IBC 53 and Republic v. Benedicto, 54 which ruled in favor of the validity of the
PCGG compromise agreement with Roberto S. Benedicto.

Immunity from

Criminal Prosecution

However, any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal liability of the
malefactor. 55 While a compromise in civil suits is expressly authorized by law, there is no similar
general sanction as regards criminal liability. The authority must be specifically conferred. In the
present case, the power to grant criminal immunity was confered on PCGG by Section 5 of EO
No. 14, as amended by EO No. 14-A, whci provides:

Sec. 5. The President Commission on Good Government is authorized to grant


immunity from criminal prosecution to any person who provides information or
testifies in any investigation conducted by such Commission to establish the
unlawful manner in which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case where such
information or testimony is necessary to ascertain or prove the latter's guilt or his
civil liability. The immunity thereby granted shall be continued to protect the
witness who repeats such testimony before the Sandiganbayan when required to
do so by the latter or by the Commission.

The above provision specifies that the PCGG may exercise such authority under these
conditions: (1) the person to whom criminal immunity is granted provides information or testifies
in an investigation conducted by the Commission; (2) the information or testimony pertains to the
unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-
gotten property; and (3) such information or testimony is necessary to ascertain or prove guilt or
civil liability of such individual. From the wording of the law, it can be easily deducted that
the person referred to is a witness in the proceeding, not the principal respondent, defendant or
accused.

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his
family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this
Commission, his voluntary surrender of the properties and assets [—] disclosed and declared by
him to belong to deposed President Ferdinand E. Marcos [—] to the Government of the Republic
of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum
of money as determined by the Philippine Government." 56 Moreover, the grant of criminal
immunity to the Camposes and the Benedictos was limited to acts and omissions prior to
February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed
against them before the competent court.
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Validity of the PCGG-Marcos

Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG and the
Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not
conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity
under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the
spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the
provision is applicable mainly to witnesses who provide information or testify against a
respondent, defendant or accused in an ill-gotten wealth case.

While the General Agreement states that the Marcoses "shall provide the [government]
assistance by way of testimony or deposition on any information [they] may have that could shed
light on the cases being pursued by the [government] against other parties," 57 the clause does
not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought,
conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no
indication whatsoever that any of the Marcos heirs has indeed provided vital information against
any respondent or defendant as to the manner in which the latter may have unlawfully acquired
public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all
forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the
Construction. The power to tax and to grant tax exemptions is vested in the Congress and, to a
certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution,
specifically provides: "No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Member of the Congress." The PCGG has absolutely no
power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten
wealth cases.

Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their
properties, such law will definitely not pass the test of the equal protection clause under the Bill of
Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class
legislation. It will also violate the constitutional rule that "taxation shall be uniform and
equitable." 59

Neither can the stipulation be construed to fall within the power of the commissioner of internal
revenue to compromise taxes. Such authority may be exercised only when (1) there is
reasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's
financial position demonstrates a clear inability to pay. 60 Definitely, neither requisite is present in
the case of the Marcoses, because under the Agreement they are effectively conceding the
validity of the claims against their properties, part of which they will be allowed to retain. Nor can
the PCGG grant of tax exemption fall within the power of the commissioner to abate or cancel a
tax liability. This power can be exercised only when (1) the tax appears to be unjustly or
excessively assessed, or (2) the administration and collection costs involved do not justify the
collection of the tax due. 61 In this instance, the cancellation of tax liability is done even before
the determination of the amount due. In any event, criminal violations of the Tax Code, for which
legal actions have been filed in court or in which fraud is involved, cannot be compromised. 62

Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other court. 63 This is a direct encroachment on judicial
powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case
has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance
lies within the full discretion and control of the judge. In a criminal case, the manner in which the
prosecution is handled, including the matter of whom to present as witnesses, may lie within the
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sound discretion of the government prosecution; 64 but the court decides, based on the evidence
proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court,
is not lost despite a resolution, even by the justice secretary, to withdraw the information or to
dismiss the complaint. 65 The prosecution's motion to withdraw or to dismiss is not the least
binding upon the court. On the contrary, decisional rules require the trial court to make its own
evaluation of the merit of the case, because granting such motion is equivalent to effecting a
disposition of the case itself. 66

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the
dismissal of all such criminal cases against the Marcoses pending in the courts, for said
dismissal is not within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims, "whether past, present, or
future, matured or inchoate," against the Marcoses. 67 Again, this ill-encompassing stipulation is
contrary to law. Under the Civil Code, an action for future fraud may not be waived. 68 The
stipulation in the Agreement does not specify the exact scope of future claims against the
Marcoses that the government thereby relinquishes. Such vague and broad statement may well
be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a
license to perpetrate fraud against the government without any liability at all. This is a palpable
violation of the due process and equal protection guarantees of the Constitution. It effectively
ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for
public accountability. It is a virtual warrant for public officials to amass public funds illegally, since
there is an open option to compromise their liability in exchange for only a portion of their ill-
gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which the parties
shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an
inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for determining which assets
shall be forfeited by the government and which shall be retained by the Marcoses. While the
Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356
million Swiss deposits (less government recovery expenses), such sharing arrangement pertains
only to the said deposits. No similar splitting scheme is defined with respect to the other
properties. Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75
percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice
Act, 69 invite their indictment for corruption under the said law.

Finally, the absence of then President Ramos' approval of the principal Agreement, an express
condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as
detailed above, even if such approval were obtained, the Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental
Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos
heirs, are violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL
AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and all
government functionaries and officials who are or may be directly ot indirectly involved in the
recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to
disclose to the public the terms of any proposed compromise settlment, as well as the final
agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions
embodied in this Decision. No pronouncement as to cost.
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SO ORDERED.

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